Disobeying the Security Council: Countermeasures against Wrongful Sanctions

By Antonios Tzanakopoulos

Oxford University Press, 2011
288 pp
ISBN 978-0-19-960076-2 (hardback)

Reviewed by Anna Hood (University of Melbourne)

22 FYBIL (2011) 295

One of the great preoccupations of international legal scholarship over the last 20 years has been how to hold an increasingly active and assertive Security Council (‘Council’) to account. Innumerable reams of paper have been devoted to exploring this subject but minimal progress has been achieved. The vast majority of international lawyers have focussed their efforts on determining how the Council’s actions might be subject to judicial review.[1] Despite their efforts, however, the prospect of robust judicial review of the Council has remained, for the most part, elusive.  In Disobeying the Security Council, Antonios Tzanakopoulos seeks to shift the debate and examine the issue of Security Council accountability through a new lens, that of international responsibility. Tzanakopoulos’ innovative and intelligent attempt to advance this previously gridlocked area of law is a very welcome addition to the field.

Tzanakopoulos advances a twofold thesis. First, in a decentralised system with no formal process of judicial review, it is up to states to take action against the Council when it breaches international law (at 157). Second, such action should be understood through the framework of international responsibility and consequently classified as a countermeasure (at 157-200).

While the first limb of Tzanakopoulos’ argument is a widely accepted proposition, the second limb represents a departure from traditional understandings of state self-help against the Council. To date, when a state has refused to comply with illegal Security Council resolutions most international lawyers have justified the state’s refusal by contending that Article 25 of the UN Charter only requires states to enact resolutions that comply with the UN Charter; resolutions that contravene the UN Charter are void and do not command compliance (at 157-158).  Tzanakopoulos rejects this interpretation of Article 25 of the UN Charter arguing that the meaning of the Article has always been unclear and subject to the debate. He asserts that a constitutional system, such as that established by the UN Charter, requires acts to be complied with regardless of their legality (at 165-166). In place of the traditional justification for self-help against the Charter, he suggests the imposition of the framework of international responsibility.

In advocating the application of international responsibility to the Council’s Article 41 actions and the classification of states’ responses to such actions as countermeasures, Tzanakopoulos has to establish multiple elements. First he has to ascertain that activity flowing from Article 41 of the UN Charter can be attributed to the United Nations (at 17-53). Second, he has to determine what international legal obligations the Council is bound by when it acts pursuant to article 41 of the UN Charter (at 54-84). Third he must prove that states have the power of auto-determination to assess the legality of Security Council action under Article 41 (at 112-137). Fourth he has to show what the Council’s obligations under the international responsibility paradigm are (for example, cessation, reparation and satisfaction) (at 141-153). Fifth, and finally, he must demonstrate that states’ disobedience of Council action under Article 41 satisfy the criteria of countermeasures (at 154-220).

One of the main challenges that Tzanakopoulos faces in applying the international responsibility paradigm to the Council’s Article 41 actions is that each of these elements is complex and the reasoning that underpins each is contentious and open to attack. Indeed Erika de Wet, Matthew Happold and Marko Milanović have all expressed concern at the thin foundations on which some of Tzanakopoulos’ reasoning rests.[2] For example, they take issue with the classification of a state’s non-compliance with a Security Council resolution as a countermeasure.[3] In order for a state’s refusal to comply with a Security Council resolution to be understood as a countermeasure, the state’s refusal must be illegal (at 154). Tzanakopoulos’ assertion that refusals to comply with Security Council decisions can be understood as illegal relies on his rejection of the traditional interpretation of Article 25 of the UN Charter (as discussed above), the contention that the Charter does not specify that an illegal Security Council decision is void (at 164-166), and the view that international legal principles propounded by the International Court of Justice suggest that states must follow any decision validly adopted by an international organisation regardless of its legality (166-174). This reasoning allows Tzanakopoulos to conclude that it is illegal for a state not to follow a validly adopted, but illegal, Security Council decision. While de Wet, Happold and Milanović acknowledge that this argument is creative and intellectually stimulating, they express concerns that it relies on a disputable reading of Article 25 of the UN Charter[4] and debatable interpretations of International Court of Justice jurisprudence.[5]

The lack of robust legal foundations for every element in Tzanakopoulos’ argument troubles me less than it has troubled de Wet, Happold and Milanović. While some elements of his arguments do rest on disputable grounds, he has succeeded in proving that, under certain readings of international law, it is at least possible to apply the paradigm of international responsibility to the Security Council and to view states’ disobedience of Council actions as countermeasures. Of greater concern is the lack of a thorough examination of the rationales for seeking to understand states’ disobedience of Council actions as countermeasures. Almost all interpretations of the law surrounding the Security Council are fraught with legal difficulties.  In light of this, where a plausible interpretation arises it is useful to consider the legal, policy or theoretical grounds for preferring that interpretation over others.

At various points in his work, Tzanakopoulos does highlight some of the advantages of his approach to holding the Council to account over the alternative of simply holding that states have no obligation to comply with illegal acts of the Council. For the most part, however, these highlights are relatively brief asides that have not been fully explored or presented together to build a compelling case. In a discussion on EJIL: Talk! Tzanakopoulos elaborates on the rationales that are implicit in his book and seeks to develop them.[6] However, even here there is a need to probe and question the grounds he identifies further. The remainder of this review turns to consider some of the main rationales advanced by Tzanakopoulos in both his book and the discussion on EJIL: Talk!

The most compelling reason that Tzanakopoulos offers for understanding self-help against the Security Council as a countermeasure instead of a response to a void resolution is that it provides a more legally coherent explanation of state behaviour in responding to Council action.[7] The traditional understanding of self-help against the Council – that under Article 25 of the UN Charter states do not have to abide by resolutions that contravene the UN Charter – does not explain why states do not have to comply with Security Council resolutions that breach general international law (unless one believes that the UN Charter imposes general international law obligations on the Council via Articles 1(1) and 24(2) of the Charter).[8] In contrast, Tzanakopoulos’ theory of countermeasures does allow states to respond to Security Council contraventions of both the UN Charter and general international law.  The potential weakness of this rationale is that it requires the reader to accept Tzanakopoulos’ theory that the Council is bound by general international law not because of any provision in the Charter but because of general international law principles (at 72-74). Providing this idea is accepted, however, the theory of countermeasures does appear to offer the field of Security Council disobedience more coherence than the traditional theory.

Other rationales advanced by Tzanakopoulos, however, are more problematic. For example, Tzanakopoulos asserts that since countermeasures are subject to greater regulation, conceiving state disobedience of the Security Council in that way will discourage states from resorting to disobedience for disingenuous reasons.[9] Specifically, he explains that states can only apply countermeasures if they provide notification of their intentions and offer to negotiate (at 186). While the idea of subjecting state disobedience to greater regulation is prima facie attractive, it suffers from several shortcomings.

First, there are some forms of disobedience where the requirements of notification and negotiation are impossible. For example, where a domestic court makes a decision that a Security Council resolution, or its domestic implementing measure, breaches international law, it will not be in a position either to provide notice of its intention to find against the Council or to negotiate with the Council (at 196-197). Tzanakopoulos suggests that this is of little import as the rules surrounding countermeasures allow for the requirements of notification and negotiation to be dispensed with in certain situations (at 197). It is difficult to see, however, how the decisions of domestic courts would fall within the existing exceptions as the situations referred to in the rules on international responsibility revolve around the concept of ‘urgency’.[10]

Second, in circumstances when it might be appropriate for states to provide notice and enter into negotiations with the Council — for example, when the executive arms of states take action — two problems arise. The first is that Tzanakopoulos’ evidence suggests that the procedural requirements mandated by the countermeasures approach are already adhered to under the traditional approach to state-help against the Council (at 186-187).[11] Such evidence casts doubt on the need for the imposition of the countermeasures framework. The second problem with executive arms of states taking action against the Council is that Tzanakopoulos’ research suggests that the extent to which the Council will respect and respond to the procedural requirements of notification and negotiation is highly questionable (at 186-187). Indeed where states have attempted to negotiate with the Council over Article 41 measures, their entreaties have fallen on deaf ears.

The fact that the procedural requirements of countermeasures do not sit easily with all forms of Council disobedience; that, where possible, the procedural requirements are already satisfied under the traditional approach to self-help against the Council; and that the impact of procedural requirements in this area of the law is minimal at best, raises doubts about the benefits to be gained from understanding disobedience of the Council as a countermeasure for its procedural restrictions.

A further benefit that Tzanakopoulos claims countermeasures provide is that they have to be proportionate but not reciprocal.[12] This has two consequences. First, states have to determine whether disobeying an illegal Security Council resolution is proportionate to the injury caused by that resolution. Second, states may choose to take action against the Council, other than disobeying illegal resolutions, providing it is proportionate to the injury caused. For example, they may choose to withhold financial contributions from the United Nations (at 191-192).

The extent to which these consequences are desirable is questionable. Proportionality tests are notoriously difficult to delineate and apply.[13] Each area of international law approaches the principle of proportionality differently and each area of international law has struggled with the complexities of applying the principle.[14] The application of proportionality to state self-help against the Council is unlikely to be immune from these complexities and uncertainties. In fact the problem with the indeterminacy of the concept of proportionality is likely to be heightened in the case of countermeasures against the Security Council as there will rarely be an impartial, third party to adjudicate the matter. In other areas of law, such as trade law and international humanitarian law, cases before judicial tribunals have enabled certain understandings of the term proportionality to be developed over time.  The prospect of this occurring for actions taken against the Security Council, however, is negligible. In light of these complexities it is questionable how much will be gained from subjecting states’ decisions not to comply with the Council’s illegal decisions to such a test.

There is potentially more use in allowing states to take proportionate measures other than refusing to implement illegal resolutions. For example, there may be times when a state refusing to implement an illegal Security Council resolution has very little impact on the Council and more action is required to entice the Council to remedy the breach of international law. In reality, however, there are very few measures other than disobedience that states are likely to be able to take and the application of the proportionality test in these circumstances will be even more challenging. It is, for example, far from self-evident how much money a state should be entitled to withhold from the UN for a Security Council resolution that breaches the human rights of certain individuals. This is not to say that there is no place for a proportionality test in regulating self-help against the Council, but there is a need for the consequences of adopting such a test to be further explored.

A final reason that Tzanakopoulos provides as to why countermeasures are preferable to simply allowing states not to comply with illegal Security Council decisions is that states employing countermeasures run the risk of being found in violation of international law and thus being subject to the international responsibility framework themselves.[15] This consequence is appealing as it raises the prospect that states will refrain from opportunistically resorting to countermeasures and unnecessarily destabilising the international system. However, while it is correct that states do undertake countermeasures at their own risk, the same risk exists for states that decide not to follow Security Council resolutions because they are illegal and thus no obligation to comply arises. It is thus a benefit that is not exclusive to the countermeasures approach and therefore cannot be used to support favouring it over the traditional approach to state self-help against the Council.

It is apparent from the above discussion that that viewing state responses to illegal Security Council activity as countermeasures is not without virtue. It has the potential to provide the area with a coherent theoretical framework and there are certain consequences that flow form the institution of countermeasures that offer potential benefits to the field. There are, however, also numerous elements of countermeasures that do little to enhance the functioning of the international system and in some respects complicate it further. It is too early in the life of this area of scholarship to make a call as to the ultimate utility of employing international responsibility and countermeasures to understand states disobeying the Council. What can be concluded is that Tzanakopoulos has placed a challenging and valuable framework for examining this area of the law on the international stage and it is now necessary to explore the implications of this framework in more detail.

[1] See, eg, José Alvarez, ‘Judging the Security Council’, 90 American Journal of International Law (1996) 1–39; Erika de Wet, Chapter VII Powers of the United Nations Security Council (Hart Publishing: Oxford and Portland. Oregon, 2004); W. Michael Reisman, ‘The Constitutional Crisis in the United Nations’, 87 American Journal of International Law (1993) 83-100; Thomas M. Franck, ‘The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality?’, 86 American Journal of International Law (1992) 519-523; Bernd Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’, 10 European Journal of International Law (1999) 517-547.

[2] Erika de Wet, ‘Debating Disobeying the Security Council – is it a matter of ‘a rose by any other name would smell as sweet’? EJIL: Talk! (25 May 2011) <www.ejiltalk.org/debating-disobeying-the-security-council-%E2%80%93-is-it-a-matter-of-%E2%80%98a-rose-by-any-other-name-would-smell-as-sweet%E2%80%99/>; Matthew Happold, ‘Some Remarks on Disobeying the Security Council’ EJIL: Talk! (27 May 2011) <www.ejiltalk.org/some-remarks-on-disobeying-the-security-council/>; Marko Milanović, ‘A Comment on Disobeying the Security Council’ EJIL: Talk! (26 May 2011) <www.ejiltalk.org/a-comment-on-disobeying-the-security-council/>. References to online sources are accurate as of 21 May 2012.

[3] Ibid.

[4] de Wet, ‘Debating Disobeying the Security Council’, supra note 2.

[5] Milanović, ‘A Comment on Disobeying the Security Council’, supra note 2.

[6] Antonios Tzanakopoulos, ‘Disobeying the Security Council – Some Responses’ EJIL: Talk! (30 May 2011) <www.ejiltalk.org/disobeying-the-security-council%E2%80%94some-responses/>.

[7] Ibid.

[8] Ibid.

[9] While Tzanakopoulos discusses the procedural requirements of countermeasures in his book, he does not make an explicit argument about their virtues in the book itself. He does, however, develop such an argument in his post on EJIL: Talk! Tzanakopoulos, ‘Disobeying the Security Council’, supra note 6.

[10] Article 52(2) Articles on Responsibility for Internationally Wrongful Acts of States, UN Doc A/56/10, 2(2) Yearbook of the International Law Commission (2001); Article 54(2) Draft Articles on the Responsibility of International Organisations, UN Doc A/64/10 (2009).

[11] For example, as Tzanakopoulos himself explains, before the Organisation of African Unity refused to comply with sanctions the Council had mandated against Libya, it provided notification and attempted to negotiate with the Council despite the fact it did not perceive its actions as countermeasures.

[12] Tzanakopoulos discusses the requirement of proportionality at 186-187 in his book and the availability of other countermeasures at 191-198 but only explicitly discusses the benefits of these attributes in his post on EJIL: Talk! Tzanakopoulos, ‘Disobeying the Security Council’, supra note 6.

[13] See, eg, Thomas M. Franck, ‘On Proportionality of Countermeasures in International Law’, 102 American Journal of International Law (2008) 715-767.

[14] Ibid. See also, Elena Katselli Proukaki, The Problem of Enforcement in International Law: Countermeasures, the non-injured state and the idea of international community (Routledge: London, 2010).

[15] Antonios Tzanakopoulos, ‘Disobeying the Security Council – Some Responses’, supra note 6.